JUDGMENT
S.C. Mohapatra, J.
1. This is a reference under Section 27 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’).
2. The Commissioner under the Act has referred the following question of law for decision of this Court:
Whether the compensation amount awarded under the statute is to be disbursed only to the applicant without complying with the mandatory provision of Section 8(4) of the W.C. Act.
3. In order to appreciate the question Section 8 is to be kept in mind. It reads as follows:
8. Distribution of compensation–(1) No payment of compensation in respect of a workman whose injury has resulted in death and no payment of a lump sum as compensation to a woman or a person under a legal disability shall be made otherwise than by deposit with the Commissioner and no such payment made direct by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependent advances on account of compensation not exceeding an aggregate of one hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under Sub-section (1) as compensation in respect of a deceased workman the Commissioner shall deduct therefrom the actual cost to the workman’s funeral expenses to an amount not exceeding fifty rupees, and pay the same to the person by whom such expenses were incurred, and shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursement made.
(5) Compensation deposited in respect of a deceased workman shall subject to any deduction made under Sub-section (4), be apportioned among dependants of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half monthly payment is payable to any person under a legal disability, the Commissioner may of his own motion or on an application made to him in this behalf order that the payment be made during the disability to any dependant of the workman or to any other person whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, an application made to him in this behalf or otherwise the Commissioner is satisfied that on account of neglect of children on the part of a parent or on account of any variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under Sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in Section 31.
4. The facts giving rise to the reference are as follows:
Deceased Pargat Singh was employed by Bhagabati Prasad Sharma as a driver in the latter’s truck bearing registration No. OSU 795. In course of employment Pargat sustained fatal injuries on 26-5-1984. Smt. Daro Kaur claiming to be the mother dependant filed an application under Sections 10 and 20 of the Act before the Commissioner for compensation under the Act from the employer and the insurer of the vehicle. She claimed the monthly wages of the deceased to be Rs. 700/-. In spite of notice, the employer did not file any written statement but appearing personally examined himself as a witness substantially admitting the claim but stating that the deceased was getting Rs. 800/- per month towards salary and food. The insurer filed the written statement where all the assertions excepting the relationship of the claimant applicant with the deceased were disputed. The applicant was examined as a witness. In her deposition, she stated on oath that she is the mother of the deceased. Considering the evidence, the Commissioner determined the monthly wages of the deceased to be Rs. 700/-and directed the insurer to deposit the compensation of Rs. 23,100/-. On 30th April, 1986, the insurer handed over an account payee cheque for a sum of Rs. 23,100/-, to the Commissioner who collected the amount through the State Bank of India, Cuttack. In the order dated 30-4-1986 the Commissioner directed the claimant to appear in the Court with the list of the dependants and the certificate from the local revenue authority for consideration of payment of compensation already deposited. The order dated 30th April, 1986, reads as follows:
The O.P. No. II namely United India Insurance Co. Ltd., Cuttack has deposited the compensation amounting to Rs. 23,100/-(rupees twenty three thousand and one hundred only) as per order dated 22-2-86. Deposit the amount in the SBI, Cuttack immediately and direct the applicant to appear in this Court with the list of dependant certificate from the local revenue authority for consideration of payment of compensation already deposited in this case. The case is posted to 16-5-86. Inform the parties and put up on 16-5-86.
5. The claimant appeared personally on 6-6-1986 and produced a document certifying that she is the mother of the deceased. Being satisfied, the Commissioner paid Rs. 8,000/- to the claimant by cash and issued a cheque drawn by him for the rest of the amount. The cheque could not be encashed as the drawer’s signature differed. Thereupon the applicant filed an application before the Commissioner on 8-8-1986 for issuing a fresh bearer cheque for drawal of the amount at Cuttack or a draft against the returned cheque. Till 19-8-1986 no action having been taken the claimant described her plight in an application whereupon the Assistant Commissioner sent a letter to the Labour Commissioner. The Commissioner required the Deputy Labour Commissioner who was the Commissioner under the Act to enquire into the matter and take immediate action. The Assistant Labour Commissioner gave a reply on 21-8-1986 wherein it was observed as follows:
… On perusal of case records it reveals that on 6-6-86, the then Commissioner for Workmen’s Compensation has drawn cash amounting to Rs. 8,000/- and paid to Smt. Dora Kaur, mother of late Pargat Singh on 7-6-86 and issued an account payee cheque amounting to Rs. 15,100/- also on 6-6-86. Stamp receipt towards payment of entire amount of compensation has been kept in the file.
The payment has been effected on the basis of the certificate of dependancy filed by the advocate on behalf of the applicant. Records do not reveal if a list of dependants was called for/obtained through the concerned Tahasildar of the area to which the applicant belongs.
Besides, it is also seen that the payment has been made to applicant who belongs to Punjab having her photograph identified by her advocate Sri B.N. Prasad of Cuttack. From the records available in the case file it is not known whether efforts were made to identify the applicant by the concerned Tahasildar of the area to which the applicant belongs. It is also not known whether how many dependants of late Pargat Singh are there and lawfully entitled to get the compensation since the entire amount has been paid to Smt. Dora Kaur.
6. The Labour Commissioner instructed the Assistant Labour Com-missioner-cum- Workmen’s Compensation Commissioner, Cuttack to take care of the following points for determination of the compensation.
(1) The order given by your predecessor and Commissioner for Workmen’s Compensation in the instant case may be minutely gone through.
(2) It may be checked from the said order as to the exact amount to be paid again to the claimant, Smt. Daro Kaur besides Rs. 8,000/- (Rupees eight thousand) only already paid.
(3) The cheque issued by your predecessor for Rs. 15,100/-(rupees fifteen thousand and one hundred) only it has been sent back by the Bank of India and has returned back to you, the same may be cancelled and kept in records;
(4) The claimant may be asked to produce legal dependants certificate from the Revenue Authorities of her village/area to be eligible to receive the compensation if not already done besides three passport size photographs duly attested by the Gazetted Officer.
(5) It may be ascertained from your predecessor about the circumstances regarding obtaining stamped receipts towards payment of entire amount of compensation from the claimant.
7. After receipt of the letter on 1-9-1986, the Assistant Commissioner intimated the Commissioner that on further scrutiny of the case record, he found the following irregularities:
(1) While deciding the case, the particulars of wages have not been obtained from the employer.
(2) The employer in his deposition states to have been paying the deceased his wages at the rate of Rs. 300/- per month, the compensation amount calculated on this basis comes to Rs. 24,000/-instead of Rs, 23,100/- as has been awarded in the judgment, basing on the statement of the applicant, that her deceased son was drawing Rs. 700/- per month regardless of the deposition of the employer-paymaster that the workman was in receipt of Rs. 800/- per month.
(3) No action has been taken in accordance with the provisions contained in Section 8(4) of the Workmen’s Compensation Act, notice for appearance requiring the three minor dependants of the deceased before the Commissioner on a date to have been fixed by him and verification of identity of such dependants on the basis of the certificate of the Revenue Authority not below the rank of the concerned Tahasildar for determination of the apportionment of the compensation money payable to each dependant.
(4) No action has been taken as required in the provisions contained in Section 4A of the W.C. Act. Under Sub-section (3), the employer who had failed to deposit the amount of compensation within 30 days of the death of workmen had not made any application to Commissioner giving reasons for condonation of the delay. As such the Commissioner should have initiated action under this section and imposed penalty and interest as required under law.
8. The Labour Commissioner thereafter intimated that the Commissioner under the Act being a quasi-judicial authority having powers of the Civil Court, can refer the question of law to this Court for decision. Accordingly, the reference has been made.
9. In view of the mandatory provision under Section 8(1) of the Act, there cannot be any escape from the conclusion that the amount of compensation is to be deposited with the Commissioner. In this case, the amount of compensation has been deposited. There is no evidence of any person incurring the funeral expenses. Accordingly, the entire amount was available to be disbursed. On the deposit being made, notice was issued by the Commissioner under Section 8(4) of the Act and the applicant appeared pursuant to the notice when notice was issued to the applicant, the Commissioner could have published notice in such manner as he desired, calling upon other dependants if any to appear for apportionment of the amount. However, in this case, the applicant made the claim and there was no dispute that there were other dependants. The Commissioner wanted to be satisfied that the applicant was the mother of the deceased and required for a certificate to that effect. A certificate was filed by the claimant and the Commissioner being satisfied, paid the compensation to her. Under Section 8(6) of the Act, the Commissioner had jurisdiction to pay the amount of compensation to one of the dependants also. In such circumstances the Commissioner complied with the requirements under Section 8 (4) and (6) of the Act. There is no errow of law in payment of the amount. If the entire amount would have been paid in cash, possibly, there would have been no occasion for this reference. If the applicant would not have prayed for payment of the balance amount by cash or by draft, there was no scope for re-opening the matter. After the requirements of Section 8(4) of the Act were complied with and payment was made under Section 8(6) of the Act, the reference is misconceived. Accordingly, the reference is discharged. There is no bar for payment of the amount by draft. Accordingly, the Commissioner should have paid the amount to the applicant after the cheque returned back dishonoured by Account Payee draft as prayed for by the applicant. There was no scope for making a reference at this stage. Therefore, on receipt of the record, the Commissioner should pay the amount by a crossed draft in name of the applicant by handing it over to the learned Counsel for the applicant or by sending the same to the applicant by registered post in her Punjab address.
10. In the result, the reference is discharged. The Officer exercising the power of Commissioner and making the reference shall pay the costs to the petitioner which is assessed at Rs. 150/- (one hundred fifty).